' S. M. ZUBAIR, J.--Abdul Majid was tried by the learned Additional Sessions Judge, Toba Tek Singh, under section 302 PPC, for causing the death of his wife Mst. Resham Bibi, on 30-8-1983, at 4.00 p.m.
By burning her. The trial Court vide its judgment dated 7-7-1986, convicted him for the said offence and sentenced him to death plus fine of Rs, 10,000, or in default thereof two years, R.I. With the direction that the fine, if recovered, half of it be paid to the legal heirs of the deceased excluding the appellant.
2. The convict has filed the present appeal viz. Criminal Appeal No, 540 of 1986 and the trial Court has referred the case to this Court under section 374 Cr.P.C., for confirmation of death sentence.
Both these matters shall be disposed of by this judgment.
3. The occurrence took place on 30-8-1983, at 4.00 p.m. F.I.R. Ex.PD/1 was drawn up on the statement Ex.PD of Allah Din (P.W.7) on 7-11-1983 at 9.30 p.m., which was recorded by Inspector Zia- ul-Haq (PW.8).
4. It is alleged by the complainant that he has three sisters. All are married. The deceased was married to the appellant about 27/28 years ago. Out of this wedlock four sons and four daughters were born. Abdul Sattar, one of the,sons of the deceased, was engaged with one Mst. Gogi, sister's daughter of the complainant. The appellant was against this engagement. He used to ask the deceased to break this engagement, but the deceased was adamant. This motivated the present occurrence.
5. The complainant admittedly is not an eye-witness of the occurrence. The brief facts, as disclosed by him in his statement Exh.PD, on the basis of which formal F.I.R. Exh.PD/1, was recorded, are that the complainant was a vendor of Islamic books. On 31-8-1983 he had gone to Vehari in connection with a marriage ceremony. His nephew Rafaqat went there on that day and told him that his sister, Mst. Resham had been burnt by her husband Abdul Majid and had died in the hospital on which he reached Gojra the same day but before his arrival, his sister had been buried.
The sons and daughters of the deceassed told him that their mother had been burnt to death by their father by pouring kerosene oil on her. He spent that night at Gojra with his cousin Abdul Hamid. Next morning after Qul ceremony, he went to Faisalabad, where he told the incident to Siraj Din and Allah Rakha. After 6/7 days, he went to P.S. Gojra taking the said two persons alongwith him and apprised the Inspector of the incident of death of his sister. The Inspector sent for the sons and daughters of the deceased and recorded their statements. The appellant was also sent for and the Inspector told the complainant to contact him next day and take the copy of his statement. On the next day, the complainant alongwith his companions came to P.S. Gojra, but could not get the copy. Thereafter, the complainant gave an application to the Martial Law Authorities, on which A.S.P., Gojra, summoned him and again recorded the statements of the issues of the deceased.
They deposed that they wanted to live with their maternal-uncle at Faisalabad. Thereafter, he narrated the motive part, as stated above, but added that his sister had also told him about the bone of contention and that the appellant had burnt her sister to death by putting kerosene oil on her.
6. It may be mentioned here that on 30-8-1983, Muhammad Rafiq ASI, who appeared as DW.6, on receipt of Ruqqa from Civil Hospital, Gojra, went there and recorded the statement Ex.DW 6/A of the appellant. He also prepared the inquest report Ex.DW 6/B of the deceased and recorded statements of other witnesses' in connection with the proceedings under section 174 Cr.P.C.
Thereafter, he recorded his fin-dings Ex.DW 6/C and submitted the same to the SHO Ataullah Khan Niazi. At that time, the appellant, his son Abdul Sattar and his daughters Mst. Shahnaz P.W.5 and Iqbal Bibi,` apart from Inayat Ali, submitted their affidavits. In the statements during the course of proceedings under section 174 Cr.P.C., they took up the position that the deceased has set herself on fire by sprinkling kerosene oil on her body. The persons who were present in the house tried to extinguish the fire but it resulted in her death in the hospital. Muhammad Rafiq ASI DW 6 on the basis of the medical report, and the statements of the inmates of the house came to the conclusion that it was an accidential death due to fire.
7. Dr. Muhammad Afzal, Medical Officer, Civil Hospital, Gojra, on 30-8-1983, at 8.00 p.m. Externally examined Mst. Resham Bibi deceased and observed third and fourth degree burns all over the body except soles of both the feet. There was charring of the body which had attained a tense and stiff attitude. The doctor opined that death was due to shock as a result of extensive burns on the body of the deceased.
8. Zia-ul-Haq Inspector (PW 8), after the registration of the case, recorded the statements of Siraj Din, Bashir Ahmad, Mst. Shahnaz Bibi, Mushtaq and other witnesses, who did not appear at the trial.
He arrested the appellant on 17-11-1983. On 20-11-1983, the appellant got recovered kerosene oil tin from the kitchen of his house which was taken into possession vide memo Ex. PC. The recovery memo was attested by Muhammad Jamil ASI (PW 3) and Muhammad Yousuf Constable (not produced). After completing the investigation, he submitted the challan.
9. The appellant when examined under section 342 Cr.P.C. Denied the prosecution allegations against him. He professed innocence and stated that he had been falsely implicated by the first informant and the witnesses are deposing against him under his influence. He explained the circumstances in his detailed statement, which need not be reproduced here, but the substance of his statement is that after the death of the deceased, his sons and daughters pressed him for the transfer of his bank account in their names and also the house. On his refusal, the first informant in connivance with his sons and daughters had involved him in this false case. He produced six witnesses in his defence and also documents Ex.DW 4/A to Ex. DW6/C to prove that the deceased had died of an accidental death.
10. The prosecution in order to prove its case examined as many as eight witnesses, out of whom Mst. Shahnaz Bibi (PW 5) and Muhammad Mushtaq (PW.6) who gave eye-witness account are the daughter and son, respectively of the deceased and the appellant. Allandin (PW.7), the first informant, is his brother-in-law. Zia-ul-Haq Inspector (PW;8) investigated the case. Dr. Muhammad Afzal (PW.1) externally examined Mst. Resham Bibi deceased. The evidence of the remaining witnesses is of formal nature.
' Relying on the prosecution evidence, the trial Judge convicted and sentenced the appellant, as indicated above.
11. The learned counsel for the appellant contended that the complainant had the motive to falsely implicate the appellant, on his refusal to transfer his bank account in the name of the deceased for the marriage of his son Abdul Sattar. He further urged that it is a case of two versions, one given by the prosecution and the other put forth by the defence. The latter version is prompt one eliminating the chances of fabrication and is being supported by independent and truthful defence witnesses while the prosecution version is coming from the mouth of the witnesses who were under the influence of the complainant, their maternal uncle. Mst. Shahnaz PW.5 fully supported the defence version that the deceased had died due to accident while preparing tea and sworn an affidavit before Ch. Mukhtar Ahmad MIC (DW.1) and made statements before Ataullah Khan Niazi Inspector (DW.4) and Muhammad Rafiq ASI (DW.6) to that effect. No independent witness from the neighbourhood has supported the prosecution version though available immediately after the occurrence, as per admission of the alleged eye-witnesses, on the other hand independent witnesses of the locality have supported the defence version. Resultantly, the case was dropped after inquiry under section 174 Cr. P.C. The trial Court believed the prosecution evidence on the sole ground that the ocular account is being furnished by the son and daughter of the appellant without keeping in mind that the alleged eyewitnesses initially supported the defence version and later on changed their evidence under the evil influence of the complainant. The complainant did not report the matter to the higher police officers at the earliest, which shows that a false case was cooked up with ulterior motive to grab the money of the appellant. The motive is very weak and cannot be the basis for such a gruesome murder.
' There is no independent corroborative evidence with the prosecution to connect the appellant with the crime. The recovery of kerosene oil tin which is normally available in every house, does not advance the case of the prosecution.
12. The learned counsel for the State supported the impugned judgment, more or less, on the same grounds which prevailed with the trial Court.
13. We have gone through the entire record and have examined critically the respective submissions of the parties.
' Admittedly the case is of two versions, both are equally plausible. The prosecution version is being supported by interested witnesses, though son and daughter, under the influence of the complainant. The complainant is not an eyewitness of the occurrence. He took considerable time to report the matter to the Martial Law authorities and the police, but failed to produce any independent witness from the neighbourhood, who were available as per admissions of the eye- witnesses. On the contrary Mst. Shahnaz PW.5 supported the defence version immediately after the occurrence, and made statements before the defence witnesses that the deceased died due to accident while preparing tea. The defence version is natural and probable, being supported by independent and trustworthy witnesses, who have no motive to depose falsely. The police official who conducted the inquiry under section 174 Cr. P.C., recorded the statements of many independent witnesses of the locality. Mst. Shahnaz P.W.5 swore an affidavit before Ch. Mukhtar Ahmad MIC DW.1 to the effect that her mother met her death due to accidental fire while preparing tea at her house. The defence version cannot be termed as belated, fanciful and afterthought in the presence of overwhelming evidence, which was unfortunately not taken into consideration by the trial Court. The explanation offered by the appellant for his false implication seems to be reasonable and just. The principle for decision of a case of two versions, is to place both the versions in juxta-position and then find out which version is more probable and nearer to truth.
Keeping in view the evidence brought on the record as discussed above, the defence version is supported by independent and disinterested witnesses who had no ostensible motive or reason to tell lie. The defence version also gets support from the medical evidence. Enquiry conducted by Muhammad Rafique ASI DW.6 under section 174 Cr.P.C. Discloses the names of the independent witnesses from the Mohallah, who immediately supported the defence version and on the basis of that evidence, case was not registered. It appears that when children of the appellant came under the supervision and evil influence of the complainant, the present story was fabricated to grab the wealth of the appellant as stated by him before the trial Court.
' The salutary principle of the administration of criminal justice is that where both the versions are equally plausible and reasonable, then version advanced by the defence is to be accepted, as the burden of proof lies on the prosecution.
14. For the foregoing reasons, we feel inclined to hold that prosecution has failed to prove its case beyond reasonable doubt against the appellant. We, therefore, allow the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. The appellant shall be set at liberty forthwith, if not required to be detained, in any other case. His sentence of death is not confirmed.